Negligence

October 23, 2012

Casino Slip-and-Fall Showcases Shared Responsibility in Accidents

Lake Charles casino slip-and-fall showcases negligence analysis

When New Orleans residents go into a business, they expect that the premises are safe. Most of the time businesses are. But when business owners and their employees fail to maintain safety, serious injuries can result. A recent case from the Court of Appeal for the Third Circuit shows how these instances play out in court.

The case arose from a slip-and-fall incident at a casino restaurant in Lake Charles. Butter was spilled on the floor near the buffet and, after being notified, an employee mopped the floor and put up a wet floor sign. Minutes later, a casino patron went to the buffet, slipped on the wet floor and wound up with a cracked patella and a torn meniscus. The trial court awarded the injured plaintiff over $20,000 in damages.

October 21, 2012

Complicated Elements of Appeal Showcase Difficulties in Negligence Claim

by Berniard Law Firm

A mother in Alexandria, Louisiana (“Williams”) recently sued AT&T on behalf of her three-year old due to an unfortunate accident in one of the phone giant’s stores. Johnathan Davis, then two and a half years old, was playing on the floor of an AT&T store as his mother was shopping. While playing under and around a sandwich board sign in the corner of the store, he knocked it closed against a window. When the boy leaned over to pick up something he had dropped, the sign fell towards him, striking his head and sending him to the ground. Since the accident, Johnathan has suffered at least two seizures, causing his doctors to diagnose him with post-traumatic epilepsy and some serious cognitive issues.

The jury ruled in favor of AT&T, finding that Johnathan’s mother (the plaintiff) had not shown any negligence by AT&T. Williams appealed the decision, questioning whether certain instructions and interrogatories should have been given to the jury on negligence law. Jury interrogatories are sub-questions that the jury will need to decide in order to conclude on the issue at hand. In this case, in order to prove negligence, the jury had to decide whether the accident was caused by an unreasonably dangerous condition in order to conclude whether negligence was present. Jury instructions, on the other hand, are a set of legal instructions given to the jury to aid them in coming to a verdict, such as “If you believe A, B, and C occurred, then you must find D.”

Johnathan’s mother first argued that the jury verdict form should have included an interrogatory on general negligence. She believed that the verdict form was too narrow, essentially turning her claim into a premises liability case (“Was there an unreasonably dangerous condition without which the accident would not have occurred?”). On this issue, the appellate court affirmed the trial court decision, finding that the case was indeed a premises liability case since the plaintiff had not shown any negligence by the AT&T employees. Without any evidence of negligent conduct by the employees, the trial court was not required to put questions of general negligence on the verdict form. While his mother argued that none of the employees stopped the sign from falling on the child, the court found no evidence that the employees had even seen the sign falling. The appellate court upheld the trial court’s ruling.

October 19, 2012

Following the Rules to the Letter: The Need for Careful Lawyer Behavior

by Berniard Law Firm

In order to sue, there are certain rules and procedures you must follow. There are not only federal rules; there are also state rules and local rules. All of these rules should be combined in order to correctly deal with the court system. In many cases, if you do not comply with these extensive rules, then the court will not hear your case. Obviously, these rules are important, but can be very time consuming to follow.

A recent case provides us with an excellent example of following the rules to the letter. In this case, an individual was killed on Highway 90 near Iberia Parish. His accident occurred on a temporary road near a construction zone; he was the only person involved in the accident. As a result, his mother sued for wrongful death. She listed Toyota Motor North American, Inc., Toyota Motor Engineering & Manufacturing North America, Inc., Toyota Motor Sales U.S.A., Inc., and the Department of Transportation and Development.

One of the many procedures that must be followed is the service of process. Service of process involves giving the other party a letter or some kind of notification that they are being sued. Its purpose is obviously to inform the other party that they are being sued, but also let them know that they will need to respond and possibly go to court to defend the suit.

October 15, 2012

The Law of Injunctions in Louisiana

by Berniard Law Firm

Anyone with experience in the court system knows that seeing a lawsuit through to completion takes time. While the wheels of justice may turn slowly, the plaintiff in certain cases may require urgent action to put a stop to the defendant’s behavior that gave rise to the litigation in the first place. In those situations, a plaintiff can turn to the courts for help in the form of a petition for an injunction.

Under Louisiana law, an “injunction shall be issued in cases where irreparable injury, loss, or damage may otherwise result” The Louisiana Supreme Court has explained that “injunctive relief” is designed “to prevent the occurrence of future acts that may result in irreparable injury, loss or damage to the applicant.” The issuance of a permanent injunction requires the court to assess the merits of the request, which may itself require time; the court can issue a preliminary injunction–which only requires a prima facie (on its face) showing that the plaintiff is entitled to relief–to maintain the status quo while the permanent injunction is pending. Key to the success of a plaintiff’s petition is that the court’s compulsion or prohibition of some conduct is required to stave off harm. An injunction cannot be issued for monetary damages. In addition, there is an exception to the requirement that the plaintiff show irreparable harm. The courts disregard this element when the conduct at issue “constitutes a direct violation of a prohibitory law or a constitutional right.” In other words, if the defendant’s conduct is illegal, harm is implied.

The Court of Appeal for the Third Circuit provided a useful analysis of the requirements for an injunction in the recent case of Desselle v. Acadian Ambulance Service, Inc.. The trial court granted of a preliminary injunction against Acadian to prevent it from collecting any amount in excess of the reimbursement rate it had negotiated with Keisha Desselle’s health insurance provider. Desselle disputed that any amount was due to Acadian, and was in litigation with her health insurance company over the matter. The court reversed the issuance of the injunction, stating that the case “[ran] afoul of [Louisiana law] insofar as [Desselle] did not demonstrate that “irreparable injury, loss, or damage may otherwise result” to her. First, Desselle has “already been subjected to the complained-of billing procedure.” Further, “any alleged injury, loss, or damage is monetary is nature. It is unclear how the anticipated injury, loss, or damage is irreparable insofar as “Desselle’s] suit is one for monetary damages.”

October 11, 2012

Tragic Accident on Beauregard Parish Highway Leads to Action Against DOTD

by Berniard Law Firm

Late in the afternoon of April 15, 2001, Geraldine Fruge and her eight-year-old granddaughter, Hannah Lejeune, were involved in an auto accident on US Highway 171 in Beauregard Parish. Fruge, who was driving southbound, lost control of her Pontiac and veered into oncoming traffic. Tragically, both she and Lejeune were killed when their car struck a Ford pickup truck heading northbound. It had been raining on and off throughout the day and Highway 171 was wet at the time of the crash. The victims’ family brought a wrongful death action against Louisiana’s Department of Transportation and Development (DOTD). The plaintiffs alleged that due to the highway’s construction, water was allowed to collect and pond on the roadway. They alleged that this condition amounted to a defect that caused Fruge’s car to hydroplane. After jury returned a verdict in favor of DOTD, the plaintiffs appealed.

The primary duty of Louisiana’s DOTD is to maintain the public roadways in a condition that is reasonably safe and which does not present an unreasonable risk of harm to motorists who exercise ordinary care. As discussed in this prior blog post, a plaintiff must prove the following elements in a tort action against DOTD arising from accident on the roadway: (1) that the condition that caused the damage was in DOTD’s control; (2) that the condition amounted to a defect that presented an unreasonable risk of harm; (3) that the DOTD was aware or should have been aware that the defect existed; and (4) that the defect was the cause of the plaintiff’s injuries. Upon review, the Court of Appeal for the Third Circuit began “with the second element: whether Highway 171 contained a condition that created an unreasonable risk of harm.”

The court reviewed the record and examined the testimony presented by eyewitnesses, experts, and accident investigators, much of which centered around the ridges or ruts in the travel lane that on the day of the accident held water on the road. The court noted that “it is clear that the jury could not have come to any conclusion other than the fact that the travel ruts on both lanes of Highway 171 were holding some water at the time of the accident. Thus, the pivotal question is whether this retention of water was a defect in the highway that created an unreasonable risk of harm.” After an exhaustive review of matters such as rut depth, roadway gradient, tire tread depth, and the physics of hydroplaning, the jury found that the condition of the road did not present an unreasonable risk of harm. “The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one.” Accordingly, the court held that “the evidence in the record provides a reasonable factual basis for the jury to have concluded that Highway 171 was not defective,” and affirmed the trial court’s judgment.

October 9, 2012

Chlorine Gas Leak Case Offers Lesson on Products Liability Claims

by Berniard Law Firm

Four workers who were employed by the Prairieville-based Proserve Hydro Co. were working on at a Honeywell International facility when a hose carrying chlorine gas ruptured, causing them injury. The workers sued Triplex, Inc., the company that had sold the hose to Honeywell, under the theory that it was liable for their injuries as the manufacturer of the hose. The U.S. District Court for the Middle District of Louisiana, applying the Louisiana Products Liability Act (LPLA), granted summary judgment in favor of Triplex, and the workers appealed.

In its review, the U.S. Court of Appeals for the Fifth Circuit noted that The Louisiana Supreme Court has identified four elements that a plaintiff must establish in a products liability suit under the LPLA. It focused particualrly on the requirement that the defendant must be the “manufacturer” of the product according to the state’s definition. The lower court’s summary judgment was based on Triplex’s position that it was not a manufacturer of the hose within the meaning of the LPLA. The hose in question was a “Resistoflex Chlorine Hose Part # HB30HB30HB-1560.” It consisted of a Teflon inner-core surrounded by a braided material jacket. The core and jacket were assembled by the Crane Resistoflex Company and shipped in bulk to Triplex for distribution. Upon receipt of an order from Honeywell, Triplex cut the hose to the requested length, installed Resistoflex-approved fittings to either end, and pressure-tested the hose. Triplex recorded the specifications of this work on an assembly test certificate which listed “Resistoflex” as the manufacturer of the hose.

The court looked to the LPLA to determine whether, based on its cutting the Resistoflex hose and installing the end fittings, Triplex fit the definition of “manufacturer.” It noted that the workers’ expert conceded that the hose rupture occured a significant distance away from any end fitting and did not appear to result from the modifications Triplex performed. It also affirmed the point that “the simple act of testing a product after modifications,” as Triplex did, “does not transform a seller into a statutory ‘manufacturer.’” The court was not persuaded that Triplex exercised any “control over… a characteristic of the design, construction or quality of the product,” given that Honeywell specified the exact Resistoflex part number and the end fittings it required. Accordingly, the court concluded that Triplex was not a manufacturer under the state law definition, and therefore could not be found liable for the workers’ injuries under the LPLA.

October 7, 2012

Louisiana’s Third Circuit Upholds Prescription Finding in Kinder Property Contamination Case

by Berniard Law Firm

In 1960, Hunt Petroleum Corporation (“Hunt”) entered into a surfaces lease with the Reynolds family. In 1997, Kinder Gas Processing Corporation (“Kinder Gas”), one of Hunt’s successors in interest, notified the Reynolds of an environmental study “that showed a few things [Kinder Gas] wanted to clean up,” and that it was “in the process of cleaning them up.” Over several years, Kinder Gas discussed with the Reynolds the possibility of buying part of the property and cancelling the entire lease. On January 14, 2008, the Reynolds (through a real estate appraiser) offered to sell the entire property to Kinder Gas. The offer referred to environmental problems on the property caused by Kinder Gas or its predecessors.

In 2010, Kinder Gas brought suit for a declaratory judgment against the Reynolds to avoid liability for damage to the Reynolds’ property. In turn, the Reynolds sought damages against Kinder Gas and other successors (“the Gas Companies”) in connection with toxic wastes that were spilled or disposed on the property. The Reynolds relied on theories of strict liability, nuisance, continuing trespass, and breach of contract. They asserted that the lease was cancelled as a result of the Gas Companies’ breach of contract. The Gas Companies countered that the tort claims had prescribed, and that the breach of contract claim was premature.

The Kinder Gas v. Reynolds trial court agreed with the Gas Companies, finding that the Reynolds’ had constructive knowledge of possible contamination prior to the real estate agent’s January 14, 2008 offer. Citing Marin v. Exxon Mobil Corp. and Hogg v. Chevron USA, the court held that the Reynolds’ failure to file their tort claims within a year from this date resulted in prescription. The court also found that the lease was still in effect. Relying on Dore Energy Company v. Carter-Langham, Inc., the court held that the Reynolds’ contract claim for restoration of land on which operations were ongoing was premature.

October 5, 2012

Louisiana’s Third Circuit Overturns Decision Limiting Landowners’ Recovery of Damages in Vermillion Parish Pollution Case

by Berniard Law Firm

In Louisiana v. Louisiana Land and Exploration, the State of Louisiana and the Vermilion Parish School Board brought suit against Union Oil Company of California (“Unocal”) and other oil companies for remediation of polluted state property in Vermilion Parish. Unocal admitted that it was responsible for environmental damage on the property and filed a motion to refer the case to the Louisiana Department of Natural Resources (LDNR) pursuant to Act 312 of 2006, La.R.S. 30:29. Plaintiffs objected, arguing that such a referral could not take place until all Defendants admitted responsibility and the private claims were tried to the jury. The trial court agreed with Plaintiffs.

Unocal filed a motion for partial summary judgment limiting Plaintiffs’ remediation damage claims to the amount determined by LDNR to be “the most feasible plan to evaluate or remediate the environmental damage” under La.R.S. 30:29(c)(3). Unocal argued that this language served as a cap on remediation damages resulting from a tort or the implied restoration obligation of a mineral lease. The trial court agreed.Plaintiffs appealed to the Louisiana Third Circuit Court of Appeals, which issued a decision on the case on February 1, 2012.

In considering whether La.R.S. 30:29 limited Plaintiff’s recoverable remediation damages to the cost of a “feasible plan,” the appeals court first looked to the language of the statute. The court quoted the first sentence of La.R.S. 32:29(H): “This section shall not preclude an owner of land from pursuing a judicial remedy or receiving a judicial award for private claims suffered as a result of environmental damage, except as otherwise provided in this Section.” The court found that this language clearly contemplated the landowner receiving an award in addition to that provided by the feasible plan.

October 3, 2012

Louisiana Supreme Court Denies Relief for Victim of Legal Malpractice

by Berniard Law Firm

In April 2006, Laurie Jenkins hired Chet Medlock to build a metal building for $25,000, payable in three equal payments. When Laurie discovered that the building was unsatisfactory and would need a number of repairs, she hired Denham Springs attorney Larry G. Starns to represent her interests in the dispute.

Later that year, Medlock sued Laurie for failure to make the last payment, and Starns neglected to file any documents in the suit on behalf of his client. Shortly thereafter, the trial court entered a judgment against Jenkins, a notice of which Jenkins received in the mail. It was not until September 2008, however, when Medlock garnished Laurie’s bank account that she knew something had gone “seriously wrong.”

Louisiana Malpractice Statute

October 1, 2012

Maritime Injury Leads to Lawsuit Against Employers Leads to Jurisdiction Issue

by Berniard Law Firm

An employee working on the deck of a marine vessel suffered injuries to his back and hips after a crane moving equipment from the dock swung a cargo basket at him and pinned him to the ship. The employee sued the company operating the crane as well as his own employer who operated the ship he was loading.

The plaintiff-employee, Hamm, and the defendant-companies, Island Operating Company (IOC) and Rodan, disagree about what jurisdiction controls this case. The plaintiff argues that his claims fall under admiralty jurisdiction and as such elected to undertake a non-jury trial as allowed under Rule 9(h) of the Federal Rules of Civil Procedure. But the defendant companies desire a jury trial and believe that the case falls under the Outer Continental Shelf lands Act (OCSLA).

What law is applicable in this case—admiralty or OCSLA—is determinative in this case due to the different statute of limitations. If the case falls under federal maritime law then the employee has three years to file his claim, but if the case falls under OCSLA then the case will fall under the law of the adjacent state (in this case, Louisiana) and the employee had to file his claim within a year. If OCSLA is found to be the applicable law then the employee’s claim will not be valid since he filed suit fifteen months after the accident. If federal maritime law applies, then not only will Hamm be entitled to the non-jury trial he wants, but Rodan and IOC will not be able to throw the case out.